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Charity that housed murderer Joseph Brider loses bid for name suppression

31 May 2024

| Author: Fiona Wu

Name suppression – Criminal Procedure Act – public interest test – undue hardship – principle of open justice – Senior Courts Act – leave to appeal 

The Pathway Trust v NZME and Stuff Limited [2024] NZSC 60

per Glazebrook, Ellen France and Kos JJ


The applicant, the Pathway Trust, is a registered charity that provides reintegration services to prisoners and parolees.

In the course of providing those services, the applicant worked with Joseph Brider, who had been convicted and sentenced for sexual violence offences. Brider was paroled from prison to a flat owned by the applicant. Soon after Brider was paroled there, he broke into the flat next door and murdered Juliana Bonilla-Herrera, who was unaware of his background or prior offending. The respondents seek to publish the applicant’s name in connection to Brider’s offending.

The applicant sought name suppression as an entity connected with  Brider, arguing that it would suffer undue hardship if named in connection to the murder, including that negative publicity would cause reputational damage and reduce its capacity to perform its functions, which depended on donations.

The High Court made a suppression order but the Court of Appeal quashed the order on appeal, finding that undue hardship had not been made out.  The applicant now seeks leave to appeal to the Supreme Court.


Court of Appeal decision

In reaching its decision, the Court of Appeal noted that the Pathway Trust had a more than “coincidental or peripheral” connection to both the offending and offender. There was a strong public interest in its connection to the offending and options mitigating any hardship resulting from publication were available, as was the applicant’s ability to contact its supporters and defend itself.

The Court of Appeal observed for completeness that even if undue hardship had been made out, it would have found that the open justice principle prevailed by a considerable margin. The case raised questions of public policy towards prisoner rehabilitation services and processes which require scrutiny, including of the applicant.


Leave to appeal

The applicant seeks leave to appeal against the Court of Appeal’s decision on three grounds: first, that the Court of Appeal erred by considering public interest at the threshold stage of the test for name suppression; second, that the court misunderstood the applicant’s role in connection to Brider which led to an erroneous finding that it was connected to his offending; and finally, that the court incorrectly concluded that the applicant’s potential hardship was not disproportionate to the interests supporting publication, by conflating the public interest in Brider’s offending with a public interest in the applicant’s involvement.


Supreme Court decision

The Supreme Court observed that the proposed appeal raised no matter of general or public importance, the pre-eminent test when considering whether to grant leave.

It also considered there was no evident risk of a substantial miscarriage of justice.  It found that the Court of Appeal was well aware of the particular role of the applicant in connection to Brider, but ultimately concluded that this did not displace the legitimate public interest in the applicant’s involvement, which existed independently of any wrongdoing (or lack thereof) by the applicant.  The Supreme Court agreed, also, that the Court of Appeal identified appropriate mitigating factors which were likely to soften the blow of publication.

Looking at the matter in the round, the Supreme Court concluded that the applicant has insufficient prospects of establishing that the Court of Appeal erred in concluding that the principle of open justice must prevail in the circumstances.


Applicable principles: whether appropriate to consider public interest at threshold stage – when open justice prevails – undue hardship not established – whether matter of general or public importance – chances of success too remote

Held:  Application for leave to appeal is dismissed.


Pathway 2024-NZSC-60

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